Brenda Matanga 3

Brenda Matanga is a dedicated IP Law Practioner and the managing partner at BMatanga IP Attorneys. She holds a Bachelor of Law Honours Degree (LLBs) from the University of Zimbabwe and a Masters in Intellectual Property Law (LLM) from the University of Turin (Italy) in collaboration with the World Intellectual Property Organisation (WIPO). Her contributions in the intellectual property law field include the recent amendments to the ARIPO Banjul Protocol on Trademarks in which she is part of the working group behind the analysis and amendment of ARIPO’s legal instruments. Find out her detailed thoughts on Africa’s IP landscape:

IP AND AFRICA WHY NOW?

My immediate response: If not now, then when? More than ever before, the subject of intellectual property has become relevant. Reason being it is now crosscutting and emerging in issues and discussions as diverse as public health, food security, education, trade, biotechnology, internet, and entertainment and communication technology.It is also a fact that innovative ideas and inventions spur society from one level of development to the next thus for Africa to move to the next level intellectual property plays a bigger role in the development matrix. Intellectual property promotes innovation which is central to economic growth and development thus very necessary for Africa to embrace it now, more than ever before.

Though IP in Africa may be more topical now, the IP systems in this region date back as far as the continent’s colonial history. What has become critical now is for African countries as a whole to update their IP laws and develop clear IP policies and systems. We now live in a very competitive business environment such that it has become important for the intellectual property landscape in Africa to be clearly defined so as to attract key investments in the region. It is now much faster, easier and cheaper to transport people, products and information and faster to share ideas or disseminate knowledge than it was in the past such that businesses in the region need to protect their intellectual property assets. We must also realize that there are significant changes to the methods of doing business, thanks to the endless possibilities created by Information and communication technologies. With that in mind African businesses are now competing globally with other countries such that they need to protect the unique or key features of their products or services which elements are protected in the marketplace by the system of intellectual property rights.

 MANY PEOPLE DON’T KNOW ABOUT ARIPO. PLEASE SHED LIGHT ON THIS

The African Regional Intellectual Property Organization (ARIPO) is a regional intellectual property organization that was created in Lusaka, Zambia in 1976 under what is known as the Lusaka Agreement. It was created mainly with the purpose and mandate of developing, harmonizing and promoting intellectual property primarily among its Member States and in Africa at large. It is an intergovernmental organization (meaning that it is made up of governmental representation of sovereign member states) and its headquarters is in Zimbabwe.

ARIPO’s membership is open to all members of the United Nations Economic Commission for Africa (UNECA) or the African Union (AU). This in practice means that membership of ARIPO is open to all African Countries. As at 31 December 2014 ARIPO’s member states comprised of 19 countries namely; Botswana, Gambia, Ghana, Kenya, Lesotho, Liberia, Malawi, Mozambique, Namibia, Rwanda, Sierra Leone,Sao Tome and Principe, Somalia, Sudan, Swaziland, Tanzania, Uganda, Zambia and Zimbabwe. Countries such as Mauritius, Nigeria, Rwanda, Seychelles and South Africa are “not yet” members of the organization and currently have observer status during ARIPO meetings.

One of ARIPO’s major functions in the region is the filing of trademarks, patents, utility models and industrial designs under the different protocols it administers on behalf of its member states, i.e. Harare Protocol for the registration of patents, industrial designs and utility models and the Banjul protocol for the registration of trademarks. ARIPO has also expanded its mandate to emerging IP issues such as plant varieties, traditional knowledge and expressions of folklore, access and benefit sharing arising from the use of genetic resources with the latter being administered under the Swakopmund Protocol concluded in Namibia in 2010.

ARIPO has been spearheading development of IP in Africa through offering training, seminars and conferences on IP issues and also assisting member countries to develop IP laws and policies. These organizations plays a very supportive role to IP offices of its member states by providing training of its staff and assisting them in setting up systems and infrastructure for administration of their intellectual property. Of note is the financial benefit that is derived through the operation of the ARIPO protocols in the member states as fees obtained by the regional registry are shared with the member countries.

As one enters the region for investment, using the ARIPO route for filing their IP is highly recommended. Instead of shuttling across the continent trying to obtain services in 19 different countries, ARIPO provides this centralized filing system of intellectual property. One can enjoy the benefits of centralised processing, grant and renewal. The system is simple, cost effective and very user friendly .An applicant uses one language, (English) pays in one currency, United States Dollars and employs only one attorney/IP agent to protect their IP on their behalf. This is an efficient IP protection system that is in Africa that investors and IP holders in the region can use to their advantage.

MOST BRANDS FAIL TO SAFEGUARD THEIR IP ACROSS AFRICAN BORDERS, WHAT ARE THE RISKS?

If you are trading in a market and you do not protect your intellectual property then you are acting recklessly with your intellectual property. A prudent business person will ensure that they protect their IP in every market they are trading in. It is important to understand the IP environment of a market you intend to do business in just as it is important to understand the other facets of the business environment of that particular market.

An important fact to note is that intellectual property is territorial; you are only accorded rights in the countries or regions in which you protect your intellectual property. If you fail to safeguard your IP in any market, African country or otherwise, you will encounter the following risks;

  1. Risk of counterfeiting
  2. Infringement of your IP rights including dilution and tarnishing for trademark, and passing off.
  3. Potential loss of revenue in the event of an infringement of your IP.
  4. Registration of your IP gives you an automatic right to sue in court which right you would not have if your IP is not registered.
  5. The legal standing (locus standi) to enforce your rights in any infringement matter arises from registration of your IP right in that market. If you do not have this right then you cannot enforce it.
  6. Registration of your IP provides official notice to all and sundry that you own certain IP so if this official notice is not there anyone can free ride on your IP and adopt confusingly similar products or services thereby decreasing your market share.
  7. If you have protection in a particular market you can license your rights, or grant assignments thereby increasing the revenue you can obtain in that market but if you do not have that protection you cannot obtain such revenue, therefore there is that risk of losing potential revenue
  8. You can lose credibility. Whether you are a small business or large cooperation if your IP is not protected you can lose customers, and potential ones if your brand is abused by copy cats!
  9. Safeguarding brands across borders essentially gives a brand holder control of his IP rights and helps one to secure his brand identity in that market.If such security is absent a brand can be abused by third parties.

 

BRAND AFRICA RECENTLY PUBLISHED ITS TOP 100 AFRICAN BRANDS LIST. THERE ARE VERY FEW ‘LOCAL’ BRANDS.

Brands that are acknowledged on that list are obviously brands with presence on the global market! As Africans we can console ourselves that the bulk of our products that are traded on the international market are raw materials -very few finished goods are on the international market. Consoling as that may be it is not reason enough for those “few” goods and services not to trade competitively.

It could be a sign that our brand as a continent needs an “overhaul” or it could just be a question of how the continent and the goods that come out of it are perceived. The larger markets in the continent, Nigeria and South Africa own the two brands that are on that top 20 but they could have many brands present on that list as they have big consumer markets. Despite Africa lagging behind there are hyperactive brands such as MTN, a South African brand on that list, have been very successful not only regionally but internationally.

Mtn Brand

Another reason why Africa is not as prominent on the global space is that the brand holders’ marketing strategies and channels are not as aggressive. There is need to develop strategies of penetrating the global market. There’s a need for companies in Africa to utilise technology to extensively market its products on a global scale. Most companies in Africa have no web presence. Without a website, without any activity on the internet how then can a brand be known globally or even grow to a global level.

ONLY 1 AFRICAN BRAND IN THE BRANDS 100 GLOBAL RANKINGS, WHY DO YOU THINK THIS IS THE CASE?

  1. Poor marketing strategies
  2. Uninventive brands
  3. What this probably means is that African brands are only trading within the African continent and many brands do not make it in the international market thus the SAD scenario.
  4. With most African countries providing the raw products, through foreign exports it definitely means African products are not in any way inferior but what may be lacking is competitive brand building of African products.
  5. The other reason why this is the case is that producers do not use intellectual property to distinguish their products on the market .Selling unbranded products is the reason for the demise of African products on the international market. There is need to build international recognition of local brands.A case in point would be the Ethiopian coffee case with Starbucks. It is a fact that the world’s finest coffee such as Harrar,Sidamo and Yirgacheffee originate from Ethiopia.Ethiopian coffee has a unique flavor and aroma that distinguishes it from coffees from other countries.Despite these positive attributes of Ethiopian coffee, the producers in Ethiopia were failing to obtain high returns on their coffee sold internationally on the retail market. The bulk of the coffee sales profit was going to middlemen and distributors. To solve this problem and that of brand recognition the Ethiopian coffee industry eventually used IP to differentiate Ethiopian coffee in the marketplace and this helped the producers to achieve higher returns for their coffee. The different coffee brands were registered as trademarks in key markets such as Europe, the United States, Canada, Brazil, China, Japan and even in South Africa, solving the legal dispute between the coffee farmers in Ethiopia and Star Bucks.

SO MUCH FOR BRANDS, IS THERE A NEED FOR PATENTS IN AFRICA? IF SO WHICH INDUSTRIES NEED THEM?

Generally, as a continent we do not have an intellectual property culture, let alone a patenting culture. Inventors in Africa do not patent their inventions or they are actually not inventing as much as they could be. Very few governments in Africa provide a substantial budget towards Research and Development thus stifling innovation in industry. A recent survey of ARIPO patent filings is illustrative of this position. See the statistics for the patents that have been filed under ARIPO in the last 20 years (1984-2014) and the countries that have filed them here under. From this table there is only one African country, South Africa. It is not clear whether the patents actually originate in that country. What is clear from all this is that, we simply do not have a patenting culture in the region despite the need for patents.

Country of Origin No. of Files
United States of America 2400
United Kingdom 768
South Africa 660
Germany 467
France 450
India 344
Switzerland 320
Australia 315
China 188
Canada 162

Source:ARIPO

Generally all innovative industries need patents for their growth and sustenance namely;

i.  Pharmaceutical industries: With diseases and epidemics ranging from minor illnesses to fast contagious diseases and viruses like HIV and Ebola there is need for inventions that curb such illnesses. There is need for drugs that at the very least assist in the prevention of these viruses and diseases.

ii.  Agricultural Industry: Africa is well known for producing various agricultural products therefore there ought to be developments in technology that can improve the agriculture methods and systems.

iii. Mining Industries: Most African countries have vast mineral resources some of which lie under earth and are difficult to extract. In this sector there is definitely a need to come up with innovative solutions and products to make mining easier and more profitable.

iv. Information Communication Technology (ICT):  There is always development in terms of hardware, software and technological growth such that patents are needed to protect the technology that is developed in this sector.

Below is a list of the patent classes that have been filed at ARIPO in the last 20 years which can be used to assess the industries that need patents in the region or that have at least shown to have a need for them in the eyes of those that have patented in the region.

CLASS                  DESCRIPTION

C

Chemistry; Metallurgy

A

Human Necessities

F

Mechanical engineering; lighting; heating; weapons; blasting

B

Performing operations; transporting

G

Physics

H

Electricity

E

Fixed constructions

D

Textiles; paper

Source:ARIPO

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